Dishonest? Not if you think everyone is at it?

A legal textbook tells you a dubious tactic is common practice. Do you adopt that tactic in a likely doomed attempt to win your client’s case for them? That was the scenario that presented itself for a Wright Hassall partner in 2020 in a case before the Solicitors Disciplinary Tribunal recently. The question that presented itself, was he knowingly or recklessly dishonest.

In September of that year, he sent two letters to the 82 year old tenant of his client’s property enclosing notices to quit in a way that implied each letter enclosed the same notices. In fact, they were not the same letters. The tactic, which Mr Woolf acknowledged in an email to his client was an attempt to “spoof” the tenant’s advisers and “disguise” one of the notices to quit was described by the tribunal as having, “implied that the notices to quit enclosed with each were the same when in fact they were not”.

Mr Woolf accepted he had failed to maintain the profession’s reputation, failed to act with integrity, and abused his position by taking unfair advantage under SRA Principles 2 and 5 and paragraph 1.2 of the Code of Conduct. “with hindsight, he accepted were capable of giving the impression that Notices To Quit enclosed with those letters were identical, when they were not.” But he denied, “that his conduct had been dishonest or that he had been reckless as alleged.” Somewhat surprisingly, perhaps, the tribunal agreed. He was suspended for a period of 12 months

The case turned in part on the Ivey test for dishonesty. Woolf was found to have a genuine belief that his conduct was not dishonest because the tactic he employed was common practice. It is worth setting out how Mr Woolf himself described his own actions when strategising with his client, he advised as follows:

“I am still working out how best to try and disguise the fact of the bare notice to quit. It might be that I serve 2 notices in each letter in order to try and not make it obvious that one of the notices is a bare notice to quit. This is in order to try and spoof the tenant’s advisers into just having the notices delivered by special delivery referred to arbitration and not notice that one of the notices is different.

It must be recognised that this is, as I have said before, a high-risk strategy but do not currently see any other strategy given the compressed time available.

Given the current COVID situation, I should just warn you to watch out for any notice arriving informing you of the death of the tenant. The tenant is clearly quite old being at least in his 70s.”

In later correspondence, after the deed was done, he notices that it appears, “the tenant may have fallen for our ruse.” They had been sent one letter by way of special delivery which had only two notices with it and another letter by ordinary post which had the bare notice to quit with it. As Wolf notes, “This is, I suspect, because the tenant only gave the special delivery letter to their solicitors.” And, as if it needed emphasising, and perhaps as an interesting dipping of the client’s hands in the blood, “as I have said before the practice of serving the notices in this way is considered sharp.”

Once the tenant has missed the deadline for responding to the missed notice, Mr Woolf calls up his opponent solicitors to explain what has happened. They apply to the Agricultural Lands Tribunal for Wales alleging that the service of this third, missed notice, had been procured by fraud or misrepresentation and was of no effect. The application was not defended and the tenants succeeded without any findings of fact being made.

Their solicitors also complain to Mr Woolf’s COLP. In giving his explanation to his own firm he confirms he discussed with his client, “the potential to take advantage of a likely characteristic of the tenant which was not to read things properly” and that the client had been warned, “at the least this would be seen as sharp practice by the tenant whether it worked or not.” He also indicates of the letters that he sent

I would accept that the wording of the letters was such to make the reader make an assumption, but everything we do as solicitors is designed to adjust and alter the way in which the other side, both the solicitor and their client, thinks about things and draws conclusions and make assumptions in order for us to get the best possible result for our client.”

What this explanation does not admit is that the assumption being encouraged is a misleading one.

As the SRA put it, “The public would be alarmed that Mr Woolf devised a plan to deliberately mislead an elderly Tenant, with the potential consequence for the Tenant being the loss of part of his family business that he had managed for over 50 years.” The letters were stated on their face has having been sent for the following reason: “Out of an abundance of caution we are affecting service by registered post and first-class Royal Mail.” The SRA submitted, and it is not a submission which could be seriously resisted, that, “the letters were deliberately drafted in order to “trick” the Tenant into believing that the Notices enclosed with the covering letters were identical so he would fail to serve a counter-notice; something which Mr Woolf himself described as “sharp practice”.”

And in accepting with hindsight what he seems to have seen, if not fully appreciated, with some foresight Mr Woolf does make the admissions outlined above: in particular he lacked integrity and took unfair advantage od his opponent. But he resisted on dishonesty. How did he succeed on that point?

14.43 Mr Woolf denied deliberately misleading or seeking to mislead, or taking any unfair advantage of the Tenant. He was engaging in what he said was common practice of creating a possibility that one or more of the multiple Notices might be overlooked and go ‘uncountered’, disentitling the Tenant from challenging the Notices and securing an advantage for his client which would not have arisen had he been transparent about what Notices the Landlord was serving.

14.44 Mr Bullock [for the SRA] submitted that it was acknowledged that serving different Notices To Quit was a tactic employed by Landlords in attempting to obtain possession of agricultural tenancies. However, what was misleading was the fact that the covering letters dated 23 September 2020 were implied to be one and the same letter, enclosing one and the same set of Notices To Quit. That was not true and Mr Woolf knew it was not true as he had deliberately enclosed different Notices with each letter.

Moreover, “Leading practitioners’ textbooks on agricultural law and caselaw treated the practice as standard and commonplace and the Applicant itself accepted that this was, indeed, an established practice.” And whilst, “With the benefit of hindsight, he could now see that the serious risk of the Tenant being deceived could amount to sharp practice but, at the time that he had sent the Notices and the covering letters, he had not appreciated that. He had thought, at that time, that he was doing nothing more than was commonplace.”

His Counsel suggested he had “agonised” over the wording of the letters, “to ensure that they were not misleading” and he suggested obtaining an opinion from “relatively senior counsel” on serving the notices, with counsel suggesting this is not indicative of dishonesty or recklessness. There is no suggestion such an opinion was sought. So another interpretation was the lawyer saw a risk, shared it with their client, and took it nonetheless.

And Counsel seeks to deal with, “Mr Woolf’s use of terms such as “disguise”, “spoof”, “trick”, “ruse” and “sharp practice”, to describe the tactic as being, “clarified that he considered “sharp practice” to mean “technically correct but not really cricket”. It was only with the benefit of hindsight that Mr Woolf now perceived that what he had done lacked integrity.”

The SDT’s appears to have been hit for six, emphasising cases which suggest fraud or dishonesty requires cogent evidence, solid grounds and that:

However unreasonable Mr Woolf’s belief of the facts might seem, the Tribunal was of the view that he had genuinely believed at the time that he had served the covering letters and Notices To Quit, that he was merely acting in accordance with established custom and standard practice in his field of agricultural law. The Tribunal was of the view that, by the objective standards of ordinary decent people, a person holding Mr Woolf’s belief as to the facts at the material time, would not be regarded as having acted dishonestly

What the SDT seem to do is only hold one part of Woolf’s reasoning in their mind when considering dishonesty. That bit of reasoning was that serving multiple notices in the hope one would be missed was a common tactic. They do not hold in their minds his expressed view that they were disguising the notices, that it was a ruse, and it was sharp practice. And that the language of the covering letter looked to add to the problem by explicitly explaining why there were two letters in a way which was, in the SRA’s submission, and I agree, misleading. So what an ordinary decent person might think as to honesty in such circumstances is subject to more debate and doubt than the SDT seemed to think. Does a common practice really excuse something if it is on its an attempt to take advantage and here, on its face, appears to be misleading? Should the professional disciplinary tribunal require more independence of thought than it’s a common tactic so it must be okay? And is the common tactic changed by the laying on of an extra explanation to disguise the reasons for two letters?

I was also struck by the absence of the dicta in Wingate on integrity involving, “more than mere honesty. ” Jackson LJ said, “a solicitor conducting negotiations or a barrister making submissions to a judge or arbitrator will take particular care not to mislead. Such a professional person is expected to be even more scrupulous about accuracy than a member of the general public in daily discourse.” What we have here is a solicitor being particularly careful to engage in a ruse, a disguise, with a lack of integrity, in a way that takes unfair advantage, and which was also conceded as having not upheld, “Public trust and confidence in the solicitors and firms we authorise.” And yet the tribunal appears willing to say the (apparently) unreasonable belief that a supposedly common practice must be technically correct “if not cricket”, is sufficient for an ordinary member of the public to believe that would not mean it was not dishonest.